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July 24, 2007

Controversy over proposed Michigan sentencing reforms

This local article provides an effective review of the controversies brewing over Michigan Governor Jennifer Granholm's suggested changes to the state's sentencing laws.  Here are excerpts:

Public safety is not state government leaders' priority. That is the reaction Livingston County Sheriff Bob Bezotte had upon learning about Gov. Jennifer Granholm's proposed reforms to the state's sentencing laws. "The state is trying to fix its problem by dumping (them) on the county," Bezotte said. "As far as I'm concerned, the state government is shirking its responsibility. Public safety is not one of their priorities."

The Granholm administration is pushing to change the state's sentencing laws so fewer criminals are locked in state prisons and county jails. However, Bezotte said the proposal will only land more people in the county jail, which continually sees overcrowding.

According to the proposed sentencing law reforms report, about 140 felonies — such as fourth-degree fleeing and eluding, felonious driving, negligent homicide and writing bad checks — would become one-year misdemeanors, which mean a potential jail sentence — not prison. The plan also calls for putting lower-level offenders behind bars for less time....

Attorney General Mike Cox as well as other law enforcement officials on Monday blasted the proposal, calling it "seriously flawed." 

The state report disagrees with Bezotte's analysis of the likely impact, indicating that statewide county jail intake will be reduced by a net of 11,939 admissions each year....  "We need these sentencing reforms," Corrections spokesman Russ Marlan said. "If we want to see significant costs savings, we need to decrease the prison population." That's all well and good, local officials say, but the problems the state hopes to eliminate are simply being passed to the county governments.

This AP article and this addition local piece provides additional information about the attacks on Gov.  Granholm's proposals. 

July 24, 2007 at 10:03 AM | Permalink


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Let's hope that home invasions aren't on the list of crimes that will be treated more leniently. Home invaders are extremely dangerous felons, as this awful news story shows.


Posted by: federalist | Jul 24, 2007 11:48:36 AM

Typical unthinking response to any proposal aimed at doing anything other than locking people away - out of sight out of mind, until they get out again worse than when they went in.

Posted by: Anon | Jul 24, 2007 11:54:36 AM

Well, it seems safe to say that the animals in that news story, who have long long records, should have been locked away for good. You see, when you don't let people out, you don't have more crime. Once people get past a certain point, they should be permanently removed from society. Three-strikes laws do this well.

Posted by: federalist | Jul 24, 2007 12:02:40 PM

How about this? Two strikes, and you are subject to the death penalty with no appeals. This way, trials would be unnecessary. The accused would have the opportunity to present his views on why he should be set free to a DA -- in writing -- so long as it complies with the applicable rules regarding style and form.

Since there would be more executions, state prisons would be eliminated. Counties would hold "first strikers" and prisoners awaiting execution. To further cut costs, the family of the "defendant" would pay for the bullet.

I appreciate your insightful analysis of Michigan law.

Posted by: S.cotus | Jul 24, 2007 12:13:53 PM

Congrats to the governor of our foe to the North for continuing to at least make an effort. It seems to me that her reforms have both positives and negatives. By reducing maximum penalties on some crimes, the cost of housing prisoners it seems would logically decline. Presumably, if the current max is 15 years and it is reduced to 10, the range of sentences given will also be proportionally reduced, resulting in all offenders for that crime receiving lower sentences.

The flip side of course is that these offenders re-enter society sooner and you deal with the risk of recidivism. However, I think you can dump some of the cost savings of this plan back into the prison and try to make an effort to again make prison about rehabilitation rather than retribution. It seems as though the $$$ saved through this plan could be used to run educational & vocational training in prison to reduce recidivism (thus again lowering the cost to run prisons).

If all of that doesn't work, then I vote for S.cotus's proposal.

Posted by: JustClerk | Jul 24, 2007 12:48:36 PM

I didn't purport to analyze Michigan law. I do note, however, S.cotus, that the last time you and I actually debated law (Indiana law), you came out on the short end.

Personally, I would not have an issue with a "three violent felonies and you're executed" law.

Posted by: federalist | Jul 24, 2007 12:49:24 PM

I assure you all that every “law” of every kind (which include the kind that legislatures make, the kind that judges make, and the kind that executive agencies make) has positives and negatives. Strangely, there are no silver bullets in law and/or policy.

I suspect (without knowing the background) that this is just the first round in a discussion. My guess is that Michigan is finally realizing that at some point putting people in jail will cost the state a lot of money. Her first tactic is to shift the cost to someone else. Her second tactic (after people grouse about this) will be to maybe argue that less people should be put in jail. However, as one who thinks that the prison population is too low (and someone that tracks the stock value of Corrections Corporation of America – symbol: CXW), I tend to favor incarcerating more of the country. Perhaps up to 60% of non-college educated people, 50% of community college grads, 10% of college-educated people and 2% of people with an MA or more. However, others would argue that execution Chinese-style is better then the Chinese communist method of justice (as JustaClerk would agree) is far superior to our antiquated, method of having to trade money for safety and think about whether each person should really be in jail or killed or not.

Federalist, I am not sure what you are talking about since Indiana is very far away and has a different culture and inferior moral values to my own, but it is generally considered bad form to declare oneself a "winner" in a debate. Usually someone else needs to analyze the arguments given and then decide who "wins."

Posted by: S.cotus | Jul 24, 2007 12:57:09 PM

Someone just asked me who would guard these larger prisons. I think that guest workers could handle the task of guarding Americans. But, they would have to go back home after two years.

Posted by: S.cotus | Jul 24, 2007 1:01:20 PM

Speaking as someone from Michigan who now lives in a state where federal judges are on the cusp of freeing thousands of felons because our habitual offender statute and parol system have resulted in overcrowding in both our prisons and jails, I think this is a pretty good idea. First, most of the offenses mentioned in the article are minor (felony bad check? please). You also save costs on both incarceration and PD/DA work. And imprisonment is waaaaaay more costly than supervised release, so even an increase in supervised release will result in net savings.

Also, incarceration is never good for rehabilitation. Maybe for some offenders, but time in jail or prison means time not working, money not made, families apart, etc. Which makes it that much more difficult to get on your feet when you are released.

As far as I am concerned, incarceration is only appropriate for violent offenses and sex offenses. And even then, not always. We have become so addicted to imprisonment that we are spending billions each year in futility, with crime rates that horrify similarly situated countries.

Posted by: Alec | Jul 24, 2007 2:26:34 PM

Posted by: | Jul 24, 2007 2:38:36 PM

Can I asked both Federalist and S.cotus a question? A few years back, a first time convicted Felon (white collar) non drug dealer would get for the most part probation. Now with the relevant conducts (acquitted charges)no longer get probation but get prison time. Which I think is a violation of your 6th amendment right. (What do I know, I'm not a lawyer)Booker tried to address the 6th amendment and Rita (reasonableness)kind of shut the door on questioning your sentencing based on Acquitted charges that the Judge can use to enhanced your sentencing. Because of this unfair abused power, more people (white collar) are in prison and serving outrageous time. I suppose my question is does these people deserves to be in jail with the violent ones? How is it possible that you lawyers and scholars allowed these laws violates people constitutional rights. I guess Corrections "Corporation of America – symbol: CXW" needs to find ways to keep the prison full to make profit. Forget the people rights, they have to be stupid enough to get caught.

Posted by: Joe | Jul 24, 2007 2:42:13 PM

Alec, prison beds are a scarce resource, and we need to figure out a way to maximize their effectiveness. But the categorical imperative has got to be getting repeated serious felons incarcerated, many of whom for the rest of their natural lives (or until they are too infirm to be much of a threat).

Certain white collar criminals need to go away for a long time. That's all I'll say about that.

Posted by: federalist | Jul 24, 2007 3:11:47 PM


Why is that the imperative? And which felons are we discussing? And why are crime rates in other countries so low by comparison?

In much of the world (if not most) our sentences appear draconian. I am not only talking about the death penalty. Five year mandatory minimum depending on the amount of crack you are carrying? That's insane.

I have not seen any evidence that our sentences, including our mandatory minimums and our death penalty, have worked at all to reduce crime. Crime is still rampant in California, even with "three strikes." Every governor this state has had for the last 12 or so years has been a "tough on crime" governor (and the same goes for virtually every other state, and the U.S. executive). There is no shortage of drug crime (possibly the worst failure of U.S. policy in our brief history) and we are spending billions of dollars fighting it.

You can discuss our "categorical imperative" until your head turns blue. It will not change the fact that we are overseeing a failed system that incarcerates too many people for too long.

Posted by: Alec | Jul 24, 2007 4:14:58 PM

Alex, you're the man. A lot of these people think locking people up especially first time non violent criminals (excluding the drug dealers)is the best thing to do. How about giving them probation and if and when they violate their probation then you can considers sending them to prison. I wondered how many beds will not get fill. Oh, we cannot have that because budgets will get slashed and people who make money from the prison system will lose some profit.

"We have become so addicted to imprisonment that we are spending billions each year in futility, with crime rates that horrify similarly situated countries." Beside the staff at the prison, I wonder who get a portion of the billions of dollars.
Do these people have a special interest group who lobby congress to enact ridicule laws to keep the prison full?

Posted by: Joe | Jul 24, 2007 10:29:44 PM

Alec writes, "I have not seen any evidence that our sentences, including our mandatory minimums and our death penalty, have worked at all to reduce crime."

Where have you looked? In a book titled The Crime Drop in America, even the anti-punishment crowd has to admit that a quarter of the big crime drop of the 90s was due to tough sentencing. Other estimates are higher, but even 1/4 means a *lot* of people were not robbed, not raped, and not murdered because we got tough in the 80s.

As for the death penalty, although the debate is not completely closed and perhaps never will be, a clear preponderance of studies in the peer-reviewed literature indicate that the death penalty does have a deterrent effect and does save lives where it is actually enforced. There are critics of these studies, of course, but for the most part they are avoiding peer-review scrutiny and publishing in law reviews.

Posted by: Kent Scheidegger | Jul 25, 2007 9:57:38 AM

Kent, what about the crimes that are not reported?

Posted by: Joe | Jul 25, 2007 10:27:35 AM

Joe, there were surely unreported crimes throughout the periods referenced in Kent's post, both during the 80s and during the 90s when crime subsequently dropped.

If we're going to rely on unreported crimes to fudge the data, then your position is unfalsifiable and the debate is futile.

Posted by: Ben D | Jul 25, 2007 10:47:41 AM

Crime rate data is always skewed.

Consider this:

The decision as to *what*is*a*crime* is a policy matter. A legislature can decide to criminalize drugs, sex, or violence. Or not. Countries do not have to provide for free speech or free religion as we do.

The decision as to what crimes to enforce is a matter of policy and experience. It is usually better policy to enforce the laws prohibiting “victimless” crimes against the poor.

Police are under a lot of pressure to report crimes in different ways depending on political situations. A crime rate can be reduced by simply not reporting crimes. A crime rate can be increased by construing non-violent crimes (i.e. such as destruction of property) as apparently failed violent crimes. And the list goes on...

Posted by: S.cotus | Jul 25, 2007 11:08:52 AM

Of course...any data or statistic can be skewed or manipulated, that's what makes historical baseball arguments so fascinating and yet often unresolvable. However, a 25% drop is clearly attributable to more than alterations in reporting policy, political situations or the skewing of data.

Posted by: Ben D | Jul 25, 2007 11:23:47 AM


I love that word, since it means nothing but people think it does.

A 25% drop in crime could be attributed to 1) not prosecuting the most common non-violent crimes; or 2) treating not witnessed, but still aggravted crimes as non-violent. I am pretty sure that most urban police departments could change their figures by 25% based purely on their policies regarding how they report things or prosecute non-violent crimes without any noticeable difference in public safety.

Posted by: S.cotus | Jul 25, 2007 11:35:22 AM

I've done criminal deffnese work in Michigan for 30 years. We have mandatory guidelines, with a true indeterminate-sentence scheme. The guidelines instruct the judge either that prison is mandatory, with a minimum in the stated range; or that it is possible, but not required, with a minimum in the stated range if a prison sentence is imposed; or that a prison sentence is forbidden, with county jail time possible as part of a probationary sentence. Any prison sentence carries the legislated maximum if imposed, for first offenders. Repeat felony offenders can get longer minimum sentences, and longer maximum sentences, than first offenders. Minimum snetences are the time the inmate must serve before meeting the parole board; release is by no means guaranteed. All the offenses referred to in this post typically carry a 2-year maximum for first offenders.
One problem has been that "prison-possible" sentences were expected to result in prison sentences 20% of the time. Many counties impose them about 40% of the time, putting the cost of incarceration onto the state's budget, not the county's.
A second problem is that the parole board is no longer comprised of corrections professionals. Parole board members are now political appointees, many of them being former police officers. This board has greatly reduced parole rates for most offenders. Now, more than half of the inmates serving parolable sentences in Michigan are already past their first possible release date, though the legislature has said that a sentence in the guidelines range is sufficient.

Posted by: Greg Jones | Jul 25, 2007 11:57:58 AM

"Could be attributed"?

I love that phrase, since it allows people to appear to say something without actually saying anything.

A 25% drop in crime "could be attributed" to any number of things, but it's not truly attributable to each of them.

The argument is quite ridiculous: the drop in the crime rate is due to changes in political situations (because Republicans=BAD DOGS! ad nauseum) or departmental policy (because, of course, in the 80s a higher crime rate was preferrable?) or treating unwitnessed (but still aggravated) crimes as non-violent (it's a conspiracy!).

There are two (immediate) problems, S.cotus, with your unclaimed, yet postulated, theories. First, any number of possible explanations might have force in isolated instances or jurisdictions, but as a national trend? Sorry, but that's untenable. And second, you appear to want (or may want - I don't want to force you into actually saying something) to attribute a reduction in the crime rate to everything BUT the one thing that actually directly stops criminals from reoffending and which, naturally, would have an effect on the crime rate: placing them in prison. It could be attributed to anything else...but, oh noes!, not increased incarceration.

Posted by: Ben D | Jul 25, 2007 12:28:15 PM

"A 25% drop in crime could be attributed to...not prosecuting the most common non-violent crimes"

I thought the whole problem was that we have too many people in prison due to excessively long sentences and the prosecution of non-violent crimes...but the real problem may potentially be the non-prosecution of non-violent crimes?

Posted by: Ben D | Jul 25, 2007 12:36:54 PM

Ben, I don’t play the Democrat v. Republican game, so I don’t really know what you are talking about when you refers to political parties. Moreover, I have consistently advocated for larger prison populations regardless of crime rates or conviction rates (or even actual guilt) simply because I think society is safer with more people in jail. You seem to have me confused with someone else.

Whatever the case, my point is that it is impossible to prove, objectively (or even falsifiably) any crime rate. I gave a couple of example from personal experience (none in Michigan) of where crime rates changed based on changes in practices.

Posted by: S.cotus | Jul 25, 2007 12:57:09 PM


My parentheticals, including the political one, were not necessarily designed to attribute political motives to your proffered examples, but to undermine each of them as overarching explanations where, what I submit is, a more obvious likely cause is available. That being said, there is a clear difference between a cause and a correlation - stricter sentencing policies do not necessarily cause lower crime rates, although the two do coincide - but to out-of-hand deem it impossible to prove that there is some kind of a cause and effect relationship between the two is short-sighted.

You stated that you offer what are examples from previous experience that may account for the changes in the crime rate. I submit again that individually or with respect to a demarcated jurisdiction or sample-set, any of those examples may explain away a change in the crime rate, but when viewed in aggregate, it has to be something on the macro level, such as overarching stricter sentences, rather than any micro-level explanation.

We may simply have to agree to disagree, but "impossible" is simply too strong of a term in your second last sentence.

Posted by: Ben D | Jul 25, 2007 2:21:34 PM

Why wouldn't a crime drop be attributed to the massive economic gains of the 90s? Why must it be attributed to stricter sentencing? Or perhaps the effects of Roe v. Wade were felt for the first time in the 1990s? At least two economists have argued as much.

In fact, from the perspective of incentive theorists (i.e., those who believe in deterrence), increasing sentences for certain non-violent offenses (like drugs) can lead to an increase in violent crime. Suppose assault of an officer is punishable by 10 years, ADW by 20 (which if I remember correctly is the 18 USC range). At the same time, let's suppose poss w/int with meth is up to 40 years, depending on quantity. What happens when the officer confronts a meth trafficker, assuming the individual is "rational" and responds to deterrence?

Consider: Some states have proposed that certain sex offenses be punishable by death (I believe Texas made that proposal). The result, of course, will be the death of the child victims (or adult victims, if they go that far). The offender is in the same position killing his victims as he is molesting them. There is no gain in leaving the victim alive, at least not to the offender.

Besides, even dramatic decreases in the crime rate in the U.S. is unimpressive compared to our cultural neighbors (who lack even the oh-so-effective deterrent of the death penalty).

Posted by: Alec | Jul 25, 2007 2:50:55 PM

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